In Session No. 74 held on 12 June 1961, a ruling was given on the application of the Attorney General to allow submission of the "Sassen Document" as evidence for the Prosecution. The grounds of our Decision are as follows:

According to the explanation given by the Attorney General and the expert opinion of Captain Hagag, which was accepted as Prosecution exhibit T/1392, the Sassen Document consists of some seven hundred photocopied sheets, purporting to be a typewritten transcript of tape recordings made of conversations held over a period of four months in 1957 between the Accused and a journalist called Sassen, as well as eighty-three pages called File No. 17, which are photocopies of notes made during the same period by the Accused in his handwriting. We have also been told that on the transcript of the recordings there are a large number of corrections and comments in the Accused's writing; but in about one quarter of the transcript (some fifteen out of sixty-two recording tapes) there are no such corrections or comments at all.

Counsel for the Defence did not deny that File No. 17, together with the corrections and comments referred to above, were in the Accused's handwriting, but with reference to the transcript one of his submissions was that this is not an authentic, accurate transcript of what was recorded from the Accused's mouth, but that Sassen changed the Accused's words as he saw fit, in order to make the transcript into better journalistic material, for publication as a book co-authored by the Accused and Sassen.

We are not convinced that the Sassen Document in its entirety is admissible for the purpose for which the Attorney General wished to submit it, that is to say as a statement made by the Accused outside the Court, except for those parts written by the Accused in his own handwriting and those sections of the transcript which are necessary for understanding of those same parts, as stated in our grounds of Decision No. 79.

Those parts which are not in the Accused's handwriting are, as stated above, a photocopy of a typewritten document purporting to be a transcript of tape-recordings. On the nature of such recordings and transcripts the following was said in Criminal Appeal 11/58 (12 Piskei Din 1905, on pp. 1921-1922):

"In fact, the recordings replace testimony about the contents of a witness' statement, made by the person who heard the statement being made. Consequently, the recording is not evidence in itself, but must be submitted through a witness who can give testimony and attest to having heard the words coming from the mouth of the person making the statement. Such testimony is to be considered as primary evidence, while the recording in this sense is similar to a photograph submitted by a witness, in lieu of a verbal description of a pictorial rendering in Court of what appears in the photograph. As for the record by way of transcript made from what is to be heard in the tape recording, this is simply an aid to allow the Court to follow the recording and subsequently consider its contents (see the article by D.W. Elliott: Mechanical Aids to Evidence (1958), Criminal Law Review 5)."

It follows from the above that the transcript in itself does not have any value as a document, and even less as a document the contents of which are binding on the Accused.

The primary evidence which the Prosecution should have submitted is the testimony of Sassen who, according to the argument of the Attorney General, heard these words being uttered by the Accused, and who had them recorded in the transcript. A second witness could have been a man called Fritsch, who according to Counsel for the Defence was also present when the conversations between Sassen and the Accused were tape-recorded. The Attorney General did not ask us to hear either of these two as witness for the Prosecution, but requested that the document in question be submitted on its own merits, without any further testimony.

In the arguments before us reference was made to Section 37(2) of the Criminal Procedure (Trial upon Information) Ordinance. There is a judgment by the Supreme Court in the Mandate period (Criminal Appeal 26/44, 11 Palestine Law Reports 87), according to which it would appear that this section was applied to written statements (a complaint to the police) made by the accused some four years or so before the crime with which he was subsequently charged. If this supposition is correct, Section 37(2) would also apply to the statement under discussion, so that in any case there would be a formal objection to the submission of the transcript without Sassen's testimony. However, we did not consider it necessary to go into the question of the correct interpretation of Section 37(2), and our opinion on the admissibility of the transcript as such as a statement by the Accused is not based on this section, but on considerations on the substance of the matter.

In his arguments the Attorney General also presented alternative grounds for admitting the transcript as evidence, as follows:

(1) According to its contents: The Attorney General argues that there are many passages in the transcript which both in content and in style are identical to what the Accused said in his Statement to the Police (exhibit T/37). In this respect the Attorney General is obviously not interested in proving the passages which are identical in the transcript, with those in exhibit T/37; rather, his aim is to prove by means of such identity of content and style other passages in the transcript in respect of which there is no such identity. It is our opinion that it is not possible to use such internal comparisons of contents and style, in order to justify the admission of the entire document as the Accused's document. We found no grounds for doing so in the quotations cited by the Attorney General from Wigmore and Phipson in support for this argument.

(2) According to the corrections and comments made on the transcript in the Accused's handwriting: The Attorney General argues that in so doing the Accused "adopted" as his own the contents of the entire document. The connection between those parts of the transcript on which there are no such corrections and comments and those parts where corrections and comments appear, he asks to establish by means of evidence (Captain Hagag's expert opinion) to the effect that the entire transcript, except for one page, was typed on the same two typewriters.

In reply, the Defence argued that although the Accused began making corrections to the transcript, it very quickly became clear to him that the document was not a faithful record of what he had said. Whereupon he protested to Sassen, and they then drew up a written agreement specifying the conditions for their future co-operation. In any case, the Accused did not correct everything which needed correcting. To which the Attorney General replies that if the Accused claims that the corrections are not complete, then he should point out in his testimony which passages in the transcript are not a faithful record of what he said.

When discussing the admissibility of the transcript, it is not up to the Court to decide on the parties' versions with regard to the accuracy of the transcript as a record of what the Accused said. The question at issue was merely whether the comments and corrections which the Accused made to the transcript turn it prima facie into a document which in its entirety reproduces what the Accused said, in such a way that the Accused is then obliged to explain whether, and to what extent, that is not so.

It was our view that there are not sufficient grounds for admitting the transcript even in this fashion. If the Accused had signed the pages of the transcript, or even signed it only at the end, in confirmation of its authenticity, then he would obviously have adopted it and turned it into his own statement. However, in the absence of a signature, the comments and corrections could only have made the entire transcript into an admissible document in one of the following instances:

(i)if the comments and corrections would prove prima facie that the entire transcript represents what the Accused said, or

(ii)if the comments and corrections would change the original nature of the document - i.e., a transcript of a tape recording - and turn the whole document into a statement by the Accused.

(1)there are no comments and corrections on about one quarter of the tapes;

(2)five spools seem to be missing from the transcript,

(3)the Accused numbered more than two hundred comments and corrections - and this is agreed between the Attorney General and the Defence - which do not appear in the transcript, and only a quarter of which are preserved in File No. 17, and the rest has not been preserved.

Apart from the transcript itself, we know nothing about the circumstances in which the corrections and comments were made. The Prosecution should have brought evidence about those circumstances. Since it did not propose doing so, the burden of proof should not be shifted to the Accused; in other words, the question is not one of the weight to be attached to the transcript, as argued by the Attorney General, but of the actual admissibility of the document as a record of the Accused's words, whether oral or written.

The mere fact that someone makes comments and corrections to a transcript is not unambiguous, and does not require any prima facie conclusion that that person has adopted either the whole transcript or parts of it as a faithful record of what he said or wrote. Such an unambiguous conclusion would only be justified, even prima facie, if the circumstances under which the comments and corrections were made had been clarified to us.

Moreover - and here we differ from the opinion of our colleague, Judge Halevi - we do not see any basic difference between whole tapes without corrections and parts of tapes without corrections, since we cannot define a yardstick for determining the precise quantity of corrections required to turn an inadmissible document into an admissible written or oral deposition.

As far as there are various possible ways of considering the matter, we preferred a more stringent approach, since we are dealing with a document which the Prosecution wishes to have considered as a statement by the Accused made outside the Court, i.e., incriminating evidence purporting to come from the Accused himself, and therefore special care must be taken to have it sufficiently verified as a record of what he actually said or wrote.

With regard to File No. 17 and its entire contents, we treated this as a document written by the Accused. There is no dispute that the entire contents of this file contains a correct photograph of what the Accused wrote in his own handwriting, and since this file, including all the papers in it, can stand on its own, it is not, prima facie, subject to the same ambiguity referred to above with regard to the comments and corrections made to the transcript, so that there is no need to clarify the circumstances under which the contents of File No. 17 were written down.

Therefore we have decided to admit File No. 17 in its entirety, and accordingly it is clear that those passages from the transcript which are numbered, and without which the comments bearing the same numbers are not intelligible, must be admitted together with it.

Judge Halevi: Unfortunately, I must differ from my honourable colleagues' opinion on this important question. In my opinion, the Court should have admitted not only the additional comments to the transcript of the recording made in the Accused's handwriting, to the submission of which the learned Counsel for the Defence did not object (i.e., exhibit T/1393, File 17), but also the transcript of the recording itself, insofar as it has prima facie been verified (as I shall show further on) by means of corrections and comments made in the Accused's handwriting.

The significance of this matter is that it provided the Court with a unique opportunity (unless the Attorney General will succeed in verifying the document, in its entirety or in part, in cross-examination of the Accused, who has meanwhile elected to testify under oath) to glance into the world of the Accused, and to become acquainted with his version and explanations of the events under discussion, as presented by him in detail when he was a free man in Argentina, to his journalist friend Sassen, partly as material to be made into a book, and partly "off the record," or not for publication in his lifetime. Naturally, at this stage no views should be expressed as to the degree of credibility of the "Argentinian" version, which should have been minutely scrutinized and weighed in the light of all the other evidence. However, it may be stated with assurance that widening the ambit of the evidence in this Court, by including the Accused's previous version and his explanations which were made outside the framework of any legal proceedings against him, would in itself have been likely to be useful in elucidating the truth.

The grounds for my decision on the admissibility of parts of the transcript in question (47 out of 62 tapes of the recording) are as follows:

The transcript submitted by the Attorney General claims to be a transcript of 62 recording tapes and falls naturally into 62 transcripts (separate parts of the transcript), each of which is numbered according to the tape it was transcribed from. Forty-seven of these transcripts of tapes bear corrections and comments in the Accused's handwriting, in addition to being related by means of a special referencing system to additional comments by the Accused which are part of exhibit T/1393 (i.e., File 17, referred to above) which is entirely in the Accused's handwriting. It is my opinion that the above corrections, comments and additions made in the Accused's own hand provide a direct link between the Accused and the 47 transcripts referred to, thus making these into documents of the Accused which may be submitted in evidence against him, and which it is up to him to explain.

The fact that the Accused and Sassen held a series of conversations in Argentina, which were recorded and dealt with the Accused's activities during the Nazi period, is not in dispute. This fact was acknowledged by the Accused in his comments on the publications in Life (T/47-51), and he also referred to "a typed transcript of a recording" (eine maschinenschriftlich wiedergegebene Tonbandtranskription - T/48, page 7).

The question to be decided at this stage is whether the typescript in the possession of the Attorney General is a prima facie authentic record of what the Accused said in these recorded conversations. Since the entire substance and form of the said transcript (of which we have had a general description) clearly show it as purporting to be a word-for-word transcript of a recorded conversation between the Accused and Sassen, with indication of the consecutive numbers of each of the recording tapes, the Accused, when adding the above corrections and comments to the 47 transcripts in question, clearly realized that the material he was proofreading and commenting on was no ordinary document, but a document purporting to be a word-for-word transcript of his own words, as recorded. Under these circumstances it would appear obvious that when the Accused proofread this particular document and added various comments to what are alleged to be his recorded words, he was treating the material which he was correcting and annotating as a true rendering of his recorded words, and by this behaviour of his he thus impliedly confirmed the authenticity of the record. Therefore, it is my opinion that the learned Attorney General is right in applying to the 47 aforementioned transcripts the judicial precedents as to "adoption of his statements" (or, more accurately and more pertinently, "confirmation of his statements" by the Accused. See Phipson, On Evidence, 9th edition, page 295:

"Documents which are, or have been in the possession of a party will...generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e., exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognized, adopted or acted upon them."

This legal proposition cannot apply to the 15 transcripts from the tapes to which no comments or corrections have been made in the Accused's handwriting. For authentication of these 15 transcripts, the learned Attorney General bases himself on the identity of the typewriter used with that used for the rest of the typed material, as well as on the stylistic similarity between the Accused's language in these transcripts and the style in his statements to the police (T/37). I do not consider this to be a sufficient base for authenticating these transcripts, and in the absence of confirmation by the Accused, or by another witness, they cannot be admitted as evidence against the Accused.

As for the 47 transcripts which are prima facie authenticated by the Accused's corrections and comments, none of the arguments of the learned Counsel for the Defence concern the admissibility of these documents, but only to the weight to be attached to them. The argument as to incompleteness (the fact that apparently five further tapes and some 150 additional comments by the Accused are missing), is no argument against the admissibility of the available material, but only against the weight to be attached to it.

The Attorney General's inability to submit to the Court the transcripts of all the recorded conversations between the Accused and Sassen, does not invalidate the transcripts of those conversations which he is in a position to submit.

His inability to find all two hundred comments which the Accused made on the transcripts, or which the Accused intended to make, does not invalidate either the transcript or the fifty comments in File 17. It should be noted that these comments by the Accused are in the nature of further admissions, and do not as a rule refute the correctness of the record. Whether the Accused adds to the substance of what he was recorded as saying, or whether he detracts from or qualifies, or goes back on his words as recorded - still, what the Accused said at first were also his words, and no additional comments can affect their admissibility, but only the weight to be attached to them.

The argument that Sassen faked or distorted the recorded conversations seems prima facie to be contradicted by the behaviour of the Accused in correcting the transcripts of the 47 tapes and in making substantive comments on them; under these circumstances, the burden of proving this allegation is on the Accused. The argument as to the written agreement with Sassen to the effect that nothing should be published that had not been confirmed by the Accused's signature would appear prima facie to apply to publication only, and does not negate the fact that the statements were made; it stands to reason that the Accused wished to reserve to himself the right of deciding on the extent of publication, as well as on the final version in which his words would be published, but for the purposes of a criminal trial any utterance by the Accused, insofar as it is relevant to the matter under discussion, is admissible as evidence.

The argument that the Accused did not manage to correct all of the typed material applies mainly to the 15 transcripts which bear no corrections or comments in the Accused's handwriting and which have consequently not been admitted as being authenticated. The rule of "errors and omissions excepted" applies prima facie to the 47 transcripts corrected by the Accused, who is entitled to draw attention in his testimony to any error or mistake in the recording of his words and to make corrections accordingly.

As to the Attorney General's application to admit the transcript in question on the basis of the identification of the Accused's handwriting only - which the learned Counsel for the Defence did not deny - the question has arisen as to whether the Attorney General should call Sassen as a Prosecution witness, since, according to the learned Counsel for the Defence, Sassen's evidence is "the best evidence" for proving what the Accused said, or whether the Attorney General, as he argues, can leave it to Counsel for the Defence to call Sassen (or any other witness who was present during the conversations) as a witness for the Defence, if he so wishes.

[ Previous | Index | Next ]

Home ·  Site Map ·  What's New? ·  Search Nizkor